Gov’t Asks High Court to Deny Grace’s Request

By Beacon Staff

MISSOULA – With some witnesses and victims dying of asbestos-related diseases, there is a strong need to prevent any “additional, unnecessary delay” of a trial in the government’s asbestos case against W.R. Grace & Co., federal prosecutors told the U.S. Supreme Court.

Lawyers for the chemical manufacturer last month asked the high court to review an appellate court’s order restoring key charges to the government’s criminal case against Grace.

In a brief filed last week, prosecutors ask the high court to deny the company’s request for a hearing and clear the way for a trial, now in its second year of delays.

“Some witnesses and many victims … are dying from mesothelioma, asbestosis, and other asbestos-related diseases,” the government’s brief said. “We cannot escape the fact that people are sick and dying as a result of this continuing exposure. As time passes, more witnesses will be unavailable to testify, and fewer victims will be able to attend the trial.”

Grace has asked the Supreme Court to review an order by the 9th U.S. Circuit Court of Appeals, which overturned a number of decisions handed down in August 2006 by U.S. District Judge Donald Molloy of Missoula.

Molloy’s decisions stymied the government’s plans to bring charges of “knowing endangerment” against Grace, holding that those charges were time-barred. The knowing endangerment charge, a violation of the federal Clean Air Act, lies at the core of allegations that top Grace executives intentionally hid the dangers associated with asbestos-contaminated vermiculite mined near Libby.

Molloy also concluded that “asbestos” should be defined in accordance with a regulatory definition enacted by the Environmental Protection Agency, rather than a statutory definition. Molloy held that he would exclude evidence not limited to the narrower regulatory definition.

A 9th Circuit panel overturned Molloy’s decisions in September and reinstated the charges. Grace asked the appellate court to rehear its case but was denied, so the company brought its appeal to the U.S. Supreme Court.

In their petition to the high court, Grace attorneys argue that when Grace operated the Libby mine, the minerals in the asbestos found there weren’t regulated by the federal government. They say the company therefore can’t be prosecuted for them under the Clean Air Act.

“The government here is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the Act,” the petition said. “This — under the Act’s plain terms, not to mention fundamental norms of fair notice — the government may not do.”

The Supreme Court must now decide whether to hear the case. If it declines, the 9th Circuit rulings will stand.

The high court heard its final cases of the 2008 term in April. If the Supreme Court accepts the Grace petition, the earliest it would hear oral arguments would be in October.

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